IMPORTANT POINTS
(1) Opportunity of being heard – It is settled principle of law that all the parties involved in the matter in question should get proper opportunity of being heard. It is further settled principle of law that substantial justice should prevail over technical one.
(2) Consumer – There is nothing on record to show that Smt. N was incapacitated or she has given any authority letter to the complainant, to file the consumer complaint on her behalf, hence the complainant can not be treated as consumer.

ORDER

D.S. Tripathi, President—This appeal under Section 41 of the Consumer Protection Act, 2019 has been preferred against the impugned judgment and order dated 30.12.2021 passed by the District Consumer Disputes Redressal Commission, Haridwar (in short “The District Commission”) in consumer complaint No. 179 of 2020; Sh. Sandeep Kumar, Advocate Vs. Manager, Jaya Maxwell Hospital and another, whereby the consumer complaint was allowed ex-parte and the appellant and respondent No. 2, who were opposite parties to the consumer complaint before the District Commission, were directed to refund sum of Rs. 600/- (charges of ultrasound report) to respondent No. 1 – complainant, besides to pay Rs. 5,00,000/- towards mental & physical agony and Rs. 10,000/- towards counsel fee & litigation expenses. In addition to above, the appellant and respondent No. 2 were also directed to pay an amount of Rs. 20,00,000/- each to respondent No. 1 – complainant towards special compensation.

2. The facts of the case, in brief, as stated in the consumer complaint, are that Smt. Neetu, wife of respondent No. 1 – complainant (Sh. Sandeep Kumar, Advocate), was carrying four months’ pregnancy. The complainant’s wife was issued Mother and Child Protection Card (ekr‘ cky lqj{kk dkMZ) by Department of Medical Health and Family Welfare, Government of Uttarakhand and she had undergone vaccination at different point of time. On 18.08.2020, the complainant along with his wife visited Community Health Centre, Bahadrabad for medical examination of complainant’s wife, where she was advised for ultrasound test. For getting his wife’s ultrasound done, the complainant approached respondent No. 2 – Jaya Maxwell Hospital (opposite party No. 1 before the District Commission), where the ultrasound of complainant’s wife was conducted by the appellant – Dr. Santosh Gaydhankar (opposite party No. 2 before the District Commission) and amount of Rs. 600/- was charged by the appellant. The ultrasound report was prepared by the appellant. In the ultrasound report, it was mentioned that there is single live intrauterine gestation of 30 weeks’ 6 days’ in cephalic presentation and the fetal weight was 1641 gms., whereas the complainant’s wife was four months’ pregnant. The ultrasound report so prepared, appeared to be incorrect, as such, on 25.08.2020, the complainant’s got his wife’s ultrasound done at Dr. Shiromani Hospital, Roorkee, where after ultrasound test, report was prepared. The contents of the ultrasound report of Dr. Shiromani Hospital match with Mother and Child Protection Card issued by Department of Medical Health and Family Welfare, Government of Uttarakhand. On account of incorrect ultrasound report issued by the appellant and respondent No. 2, the complainant as well as his wife have undergone mental & physical agony, on account of which, complainant’s wife could have died. With the above allegations, consumer complaint was set in motion before the District Commission.

3. The District Commission issued notice to the appellant (opposite party No. 2 before the District Commission), but the appellant did not turn up before the District Commission and consequently, the District Commission vide order dated 11.01.2021, closed the opportunity of filing written statement by the appellant and vide subsequent order 24.09.2021, opportunity of filing evidence by the appellant was closed by the District Commission.

4. The District Commission also issued notice to respondent No. 2 (opposite party No. 1 before the District Commission), but the said respondent also did not turn up before the District Commission and consequently, the District Commission vide order dated 31.03.2021, closed the opportunity of filing written statement by respondent No. 2. However, the respondent No. 2 filed evidence by way of affidavit before the District Commission.

5. After hearing learned counsel for respondents herein, i.e., complainant and opposite party No. 1 to the consumer complaint, the Dist